92 Decision Citation: BVA 92-14602
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-45 763 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for residuals of a
gunshot wound to the left foot, rated 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. P. Hanson, Counsel
INTRODUCTION
The veteran had active military service from July 1957 to
July 1959.
This matter came before the Board on appeal from a rating
decision of April 1990 issued by the St. Petersburg,
Florida, Regional Office (hereinafter RO). A notice of
disagreement was received in May 1990. The statement of the
case was issued in June 1990. The substantive appeal was
received in July 1990. A hearing was held before a hearing
officer at the RO in August 1990. The case was docketed at
the Board in October 1990.
In a REMAND decision of April 1991, the Board referred the
case to the RO for additional medical information. Such
development having been completed, in a rating decision of
October 1991, the previously assigned 10 percent evaluation
for the residuals of a gunshot wound of the left foot was
confirmed. A supplemental statement of the case was issued
in October 1991. The case was again docketed at the Board
in January 1992. The veteran has been represented
throughout his appeal by the Disabled American Veterans.
That organization submitted written argument to the Board in
January and February 1992, and the case is now ready for
appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in
continuing the previously assigned 10 percent evaluation for
the disorder at issue. He avers that, because of his
gunshot wound, he has to walk on the left side of his left
foot; that he favors the ball of that foot; that since the
removal of a saphenous vein on the left side for coronary
artery bypass surgery, he has had increased symptoms; and
that his left foot is worse than before. He also contends
that a recent Department of Veterans Affairs (VA)
examination shows that he has swelling, pain, redness,
limitation of motion, a painful callus, nerve damage, and
poor circulation of the left foot. A request is also made
for consideration pursuant to the provisions of 38 C.F.R.
§ 4.7.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, the Board
finds that the preponderance of the evidence is in favor of
the veteran's claim of entitlement to an increased
evaluation for the disorder at issue, and a 20 percent
rating is assigned.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
decision of the veteran's appeal has been obtained by the
RO.
2. The residuals of a gunshot wound to his left foot are
manifested by a neuroma of the left second toe,
metatarsalgia, decreased circulation, a tingling sensation
involving the skin of the left lower leg, swelling,
blanching, and clawing of the 2nd, 3rd and 4th toes which
have produced moderately severe foot injury.
CONCLUSION OF LAW
A 20 percent evaluation for the residuals of a gunshot wound
of the left foot is warranted. 38 U.S.C. §§ 1155, 5107;
38 C.F.R. § 4.7 and Part 4, Code 5204, 5310.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board is of the opinion that the veteran's claim is well
grounded in that it is plausible within the meaning of
38 U.S.C. § 5107(a). We are also satisfied that all
relevant facts are on the file and that the VA has met its
duty to assist the veteran in the development of facts
pertinent to his claim, as set out in 38 U.S.C. § 5107(a).
The service medical records show that, in March 1959, the
veteran accidentally shot himself in the left foot with a
blank cartridge from a M1 rifle. The cartridge struck the
top of his left combat boot, burned a hole through it and
damaged his left foot, causing him to be admitted to a
military hospital for about a month. Arterial and nerve
involvement was indicated. The diagnosis in service was a
flash burn and, with granulation of tissue in the affected
area, he improved and was discharged with complaints of
generalized pain and discomfort. Because of continued left
foot difficulty manifested by consistent swelling, pain,
redness, and limited motion, he underwent four surgical
procedures at a VA hospital in October 1959 involving
debridement and subsequent skin grafts.
Thereafter, service connection and a noncompensable
evaluation were assigned for the residuals of a gunshot
wound of the veteran's left foot under the provisions of
Diagnostic Code 5310. This evaluation, and others to
follow, were assigned in conformity with the provisions of
the VA's Schedule for Rating Disabilities, as set out in
38 C.F.R. Part 4. An additional VA physical examination
conducted in January 1961 was to the effect that the wound
of the left foot had continued to drain, that there was
hyperflexion of the second toe, and that the foot disorder
interfered with weight bearing. In view of this, effective
January 1961, a 10 percent evaluation for the veteran's left
foot disorder was assigned under the provisions of
Diagnostic Code 5284.
The reports of VA outpatient clinic treatments from November
1989 to February 1990 show the veteran had been treated for
left foot pain in the second interspace and medial portion
of the left ankle. The impression was possible neuritis
secondary to postoperative edema from removal a vein for
coronary artery bypass grafting or neuroma. A reference was
also made to a neuroma in the affected area and tarsal
tunnel syndrome was ruled out.
At a hearing held before a hearing officer at the RO in
August 1990, the veteran testified that he had had burning
and pain in the left foot, especially along the medial
aspect; that since coronary artery bypass grafting and
removal of the saphenous vein, he had had problems with
circulation of the left foot; that he had difficulty due to
metatarsalgia; that he had been issued a metatarsal pad;
that he had pain in the second interspace and medial ankle
area; and that he had a feeling of pins and needles in the
left foot.
In a report of special orthopedic examination conducted by
the VA in August 1990, it was reported that the 2nd, 3rd and
4th toes of the veteran's foot were held in a moderate claw
position; that there was a deep, tender, fixed surgical scar
of the second web space between the 2nd and 3rd toes which
measured 3 1/2 centimeters in length; that on the plantar
surface he had a 1 1/2 cm. x 1 cm. tender, hard callosity;
that this callosity was situated over the head of the second
metatarsal; that the entire area was inflamed as indicated
by blanching and pressure; that the foot was noticeably
colder to palpation on the left side compared to the right
side; and that there was tenderness of the left ankle joint
anteriorly to pressure.
During the course of this examination, it was also observed
that there was one-plus pitting edema of the veteran's left
leg with the right leg being normal, that skin sensation was
decreased over the 2nd and 3rd toes to pinprick, that his
surgical scar was hypersensitive; that there was evidence of
a fungus infection of the feet secondary to a thickening of
the toenails and desquamation in the web spaces of all the
toes. It was remarked by the examining physician that the
veteran's coronary artery bypass surgery with vein graft had
augmented and made worse the gunshot wound of the left foot
and that the fungal infection was not a contributing factor
to the present complaints.
A report of neurological examination conducted for the
benefit of the VA reflects complaints by the veteran that,
upon awakening in the morning, he had tingling paresthesias
on the left foot and lower leg until he walked around on the
leg for several minutes and that he was concerned he had
poor circulation in the left foot as a result of his old
gunshot wound and more recent vascular surgery.
Neurological examination revealed there was full strength in
the lower extremities but that there was slight weakness of
dorsiflexion of the toes of the left foot. It was also
noted that sensation was altered between the great and
second toe of the left foot. The impression was that the
veteran had sustained some residual nerve damage in the deep
branch of the peroneal nerve as a result of his old gunshot
wound. It was also commented that he had some poor
circulation of the left foot as a result of recent bypass
surgery, that it was unrelated to his old gunshot wound,
that his foot felt warm to the touch, and that he doubted
the veteran had any significant impairment incident to
bypass surgery and vein removal.
The law provides that a 10 percent rating is warranted for a
moderate degree of muscle damage to the left foot. Where
there is moderately severe muscle damage, a 20 percent
rating is warranted. Similarly, a 10 percent rating is
applicable to a moderate injury of the foot. Where a
moderately severe foot injury is evident, a 20 percent
rating is in order. Clawing of the toes of one foot is
rated as pes cavus and assigned a 20 percent evaluation, or
if incomplete paralysis of the peroneal nerve is
demonstrated, a similar evaluation is warranted. 38 U.S.C.
§ 1155; 38 C.F.R. Part 4, Codes 5310, 5278, 5284, 8523.
In applying the provisions so far outlined, the Board finds
that, irrespective of the criteria applied, the veteran
meets the requirements of the law for a 20 percent
evaluation. We also wish to point out different aspects of
the same disability cannot be separately rated under a
number of diagnostic codes as this would be pyramiding which
is forbidden under the purview of 38 C.F.R. § 4.14.
In arriving at our decision, the Board has found the hearing
testimony provided by the veteran to be of great value and
we have favorably applied the concept embodied in 38 C.F.R.
§ 4.7, that whenever appropriate, the higher of two possible
evaluations should be assigned.
ORDER
An increased evaluation for the residuals of a gunshot wound
of the left foot is granted, subject to the laws and
regulations that govern the payment of monetary benefits.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
MEMBER TEMPORARILY ABSENT M. CHEEK
EUGENE A. O'NEILL
*38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
(CONTINUED ON NEXT PAGE)
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.